The ECHR puts the rights of terrorists ahead of Britain’s security

Sir Iain Livingstone, Chief Constable Jon Boutcher, Temporary Deputy Chief Constable Chris Todd, and former victims commissioner Judith Thompson at Stormont Hotel in Belfast for the publication of the Operation Kenova Interim Report into Stakeknife.
Sir Iain Livingstone, Chief Constable Jon Boutcher, Temporary Deputy Chief Constable Chris Todd, and former victims commissioner Judith Thompson at Stormont Hotel in Belfast for the publication of the Operation Kenova Interim Report into Stakeknife - Liam McBurney

For a quarter of a century now, this country has indulged in a culture of official “inquiries” and “reports” into the war in Northern Ireland, at a cost of hundreds of millions of pounds.

This month, Jon Boutcher published the latest, an “interim report” of his Operation Kenova investigation into the agent known as “Stakeknife”. It caused a certain amount of media attention – largely because of Boutcher’s claim that the infamous double-agent inside the IRA may in fact have cost more lives than he saved. But there has also rightly been criticism that the entire report is based on the premise that the security apparatus of the British state may have failed to comply with the European Convention on Human Rights’ Article Two “right to life” obligations.

Having had an opportunity to go through the 212-page report in detail, I would suggest not only that there is much wrong with it, but that it exemplifies a thoroughly misguided approach.

Firstly, because, like all such inquiries, the dice are loaded from the beginning. Lord Saville’s inquiry into the events of Bloody Sunday famously took over a decade to produce and cost around £200 million. After my book on that inquiry was published, a number of government officials assured me that, comprehensive though the Saville report was, it had reassured them that the culture of “inquiries” should end. It didn’t.

In 2010, there was the inquiry into the 1997 killing of Billy Wright in the Maze prison. Coming in at a mere £30 million of costs, the inquiry could not even address such central questions as how the guns used in the killing got into the prison. The family were not happy, and nothing significant was revealed.

Since then we have also had the Rosemary Nelson inquiry (£46.5 million) and the Robert Hamill inquiry (£32.6 million).

So what do we get for this? As usual with such reports, the team behind Operation Kenova decide to start from the very beginning. Boutcher’s report takes 163 pages to really even begin. Along the way, we are treated to such things as a five page “brief history of the conflict”, endless, repetitious passages about the families of the victims, and overviews of practical obstacles to the inquiry’s work.

Once the actual subject of the report emerges, it provides almost nothing. Boutcher does not even confirm that Freddie Scappaticci – who died last year, and was named as the agent over 20 years ago – was “Stakeknife”.  Nor does he identify any of the victims of the head of the IRA’s internal “nutting squad” (the IRA unit dedicated to questioning, torturing and killing alleged informers).

Boutcher comes to a few conclusions, but few of his workings are made clear. There is little to no fresh insight into the Force Research Unit (the shadowy organisation tasked with handling agents in Northern Ireland) and no obviously useful recommendations.

His main conclusions are perhaps inevitably critical of this country’s various security agencies. But his advice is so thin as to be either useless or purest, peacetime hindsight.

For instance on the matter of agent-handling, he concludes that “The state has a duty under Article 2 to conduct an effective formal investigation of any suspected wrongful killings and this duty is enhanced in cases where state agents may have been responsible for perpetrating or failing to prevent the death.”

There are at least three main problems with this. The first is the obvious fact that none of this is useful in conflict. Especially not in a conflict against a terrorist organisation which hid among civilians, killed and intimidated anyone they liked and then got away with it.

The second is that the Stakeknife inquiry, like all the other costly and high profile “legacy” investigations to date, largely focuses on failures of the British state during a war. Everyone knows the answer to this complaint – which is that the state is expected to be held to a better standard than a terrorist group.

But if that equation once held true, it no longer does. Sinn Fein – the political wing of the IRA – has been in government in Northern Ireland since the return of power to Stormont and is a political force in the Republic of Ireland.

One of those Boutcher spoke with for his inquiry (though to no evident effect) was Gerry Kelly, former member of the Provisional IRA. At the time Boutcher spoke with Kelly, he was spokesperson for policing and member of the Northern Ireland Policing Board.

There is nobody in government in the UK with any connection to Stakeknife. There are plenty of people still at the top of Sinn Fein and in positions of influence in Northern Ireland with personal knowledge and involvement in killings during the Troubles.

Still, the main failing of the report is indeed Boutcher’s insistence that even a dirty war in the past ought to have been fought under the standards of Article 2 of the ECHR. Personally, I am amazed that this claim is still being made.

It is now 23 years since the European Court of Human Rights in Strasbourg ruled against this country in the case of Kelly and others vs UK. That case related to an IRA unit of eight men who were killed in 1987 in Loughgall. They were killed by the SAS as they were advancing to a police station with guns and a primed bomb.

More than a decade after their relatives were killed, the families of the dead terrorists took the British government to the court in Strasbourg, which ruled that the ECHR’s Article 2 “right to life” had not been observed. The court ordered the British government to pay £10,000 of compensation to the families of each of the dead terrorists.

Now the UK faces yet another investigation into the killing of lawyer Pat Finucane. This will be another costly and doubtless unilluminating mess. And we can of course expect no such inquiry into Finucane’s activities as a member of the IRA. A fact that was revealed by this paper 21 years ago.

Until the Stakeknife report, it was clear that the culture of inquiries was not just expensive but exceptionally one-sided. We can now add “un-informative” to the list of complaints.

Douglas Murray is the author of ‘Bloody Sunday: Truths, Lies and the Saville Inquiry’

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